Medical malpractice is when a patient is injured because of a doctor, hospital, or other medical provider's negligent act or omission. If you suffered an injury as a result of your doctor's incorrect treatment or failure to properly treat a condition, you might wish to explore a claim for malpractice.
Medical malpractice is part of personal injury law. The process of negotiating a settlement or filing a lawsuit is similar, but there are ways in which a medical malpractice lawsuit is handled differently from a "traditional" personal injury case like a car accident.
There are 3 major elements that must be met in order for a medical malpractice claim to be successful:
Both negligence and injury must be established.
Although medical malpractice can involve any kind of treatment- or diagnosis-related injury, these are some examples of common reasons why a plaintiff might decide to file a medical malpractice lawsuit:
A medical provider has a duty to act within the level of skill, care, and knowledge that a reasonably careful provider would use in similar circumstances.
The plaintiff must prove that the provider breached that standard of care, and that the breach caused their injury.
The loose translation of res ipsa loquitur from its original Latin is: The thing speaks for itself.
When applied as a legal standard, it's the principle that the mere fact that the accident happened means there was negligence. In certain cases, you might not need direct evidence to prove that there was negligence because there's no way the injury could've happened if there wasn't negligence.
California law uses the exclusive control element to show res ipsa loquitur. If the instrumentality or agent that caused the accident was under the exclusive control of the defendant, the control factor links the defendant to the negligence.
For example, Patient Patty had surgery to remove a tumor. Although the surgery was successful, she developed a severe infection near the site several months later. It was discovered that a surgical sponge had been left inside Patty's body, and that was the cause of the infection.
A sponge in Patty's body that didn't belong there means someone on the surgical team was clearly negligent.
Res ipsa loquitur = the thing speaks for itself.
If discovery can't determine which doctor or nurse left the sponge in Patty's body, all of the defendants could share liability.
The burden of proof in a medical malpractice case where res ipsa loquitur is a factor would shift to the defendant. That means the defendant would have to prove they didn't cause the injury, rather than the plaintiff proving they did.
That's because if a plaintiff is in surgery, for example, they won't know how a sponge was left in their body, so they can't prove how the injury happened. But the fact that it's there means that someone on the surgical team was negligent. The defendant would have to somehow prove that they're not responsible for the injury in order to avoid liability.
Different states have a variety of laws when it comes to handling medical malpractice claims. California laws apply to all health care providers and facilities licensed by the state, including:
If you believe you have a claim for medical malpractice, the first (and maybe most important) thing to consider is the statute of limitations.
A statute of limitations is the amount of time you have to file a claim. You must file within the statute of limitations, or you can lose your right to sue.The California statute of limitations for a medical malpractice claim for an adult is 3 years from the date of injury, or 1 year after the plaintiff discovered (or reasonably should've discovered) the injury, whichever is earlier.
These time limits are different when the injured person is a minor. If the patient is under age 18, there are two deadlines:
The statute of limitations runs until the later of these 2 deadlines.
The statutes of limitations have exceptions. Your statute of limitations can "toll" (pause) if:
California law requires that if you're planning to sue for medical malpractice, you must provide notice to any potential defendant at least 90 days before the lawsuit is filed.
You must inform the defendant of:
In a personal injury lawsuit, you can recover damages for any actual costs you incurred as a result of your injury, and you might be able to recover for pain and suffering or other emotional distress.
You can recover damages for:
Damages in a personal injury lawsuit are in 2 categories: economic and non-economic.
Economic damages are those that have a specific dollar value, like medical treatments and lost wages. Even if you're not sure what your future lost earnings or medical expenses from an injury might be, an expert has formulas and methods to calculate future costs.
Non-economic damages don't have a specific number attached. Pain and suffering, physical impairment, psychological distress, and loss of consortium would be damages that are important, but difficult to quantify financially.California has a $250,000 damage cap on non-economic damages for a medical malpractice lawsuit. There's no cap on economic damages, but a medical malpractice plaintiff can't receive more than $250,000 for non-economic loss.
Doctors are human, too. They know when they make a mistake.
You probably know that if you're in a car accident, it's best not to apologize to the other driver because the insurance company will take it as an admission of fault. And, just like it might be your first instinct to apologize if you feel you've harmed another person, a doctor might feel that instinct, too.
The difference is that for many decades, doctors were trained not to apologize in order to protect themselves in a potential lawsuit. Today, California has an "Apology Law," also known as an "I'm Sorry" statute. An apology law ensures that the apology is not admissible in court as indicating fault, though admission of responsibility would be.
Some hospital groups, including San Francisco-based Catholic Healthcare West and the Los Angeles Veterans Administration, have full-disclosure policies. Their staff is required to acknowledge and investigate any adverse event. The hospital will apologize to a patient where it's warranted, and this can also come with an offer for a settlement to cover expenses.
The reason why hospitals and physicians are now going out of their way to make apologies when necessary is because it's a practice that's been shown to decrease their likelihood of being sued. If you've been injured as a result of malpractice, you might be so angry that you just want to get what you deserve, but also essentially "punish" the wrongdoer.
A study conducted by Stanford Medicine of nearly 1,000 patients who experienced adverse medical events showed that only 5% of them eventually pursued a lawsuit. This is good news for doctors and hospitals, of course, because it demonstrates that there are ways to avoid lawsuits by working with patients.
But it can also be good news for you. Depending on the apology program followed by your doctor or hospital (if they have one), it might save you the time, money, and stress of a lawsuit, too. If a doctor or hospital makes you an apology, it might come with a compensation offer so that you can stay out of court.If that happens, you don't have to accept or decline on the spot. You can review the settlement offer with a personal injury attorney to make sure it's fair compensation for the injury.
Most personal injury attorneys work on a contingency fee basis, which means you don't pay hourly or upfront. Instead, they earn a percentage of the damage award you receive.
In many personal injury cases, a lawyer will earn about 33% of your damage award. However, if the lawyer thinks a case might be especially time-consuming or difficult, they might charge a higher percentage.
Some lawyers have a clause in their contract that says they raise the percentage if a case goes to trial. In California, there's a fixed limit for an attorney's fee structure:
The first thing you should do is get an opinion from a different doctor from the one who's responsible for the situation. Explain your symptoms, share your medical records, and tell the doctor why you believe your injury is the result of malpractice.
Be sure the second doctor notes in your chart or writes a letter explaining why they believe you've suffered from medical malpractice. This could be a key piece of evidence.
Second, contact a personal injury lawyer who specializes in medical malpractice. The Enjuris Personal Injury Law Firm Directory is a great place to begin finding a California medical malpractice lawyer who can advise you of your options.
Medical care is one of the most important trust relationships we have throughout our entire lives. If you're suffering from symptoms of an injury that you received from someone who should've known better or done better, you deserve to be compensated for that. Make the call today to get on your way to recovery.
A personal injury lawyer helps individuals who have sustained injuries in accidents to recover financial compensation. These funds are often needed to pay for medical treatment, make up for lost wages and provide compensation for injuries suffered. Sometimes a case that seems simple at first may become more complicated. In these cases, consider hiring an experienced personal injury lawyer. Read more